Excerpt:arbitration - award--reference by minor's guardian in terms prejudicial to minor--arbitrator's enquiry behind the back of parties--misconduct of arbitrator--invalidity of award within section 15, schedule ii, civil procedure code. - - the defendant's mother agreed to the dispute being referred to be settled by a single arbitrator and in the much like that was drawn up she consented to be bound by and act according to the decision the arbitrator might give either on his own information or upon other information known in the village or by examining, the witnesses of both parties should he think it necessary. 3. that is a perfectly sound proposition provided that the parties are sui juris. 7. the law is perfectly clear on the point that an award based on such information or knowledge is..........and in the much like that was drawn up she consented to be bound by and act according to the decision the arbitrator might give either on his own information or upon other information known in the village or by examining, the witnesses of both parties should he think it necessary. the agreement to refer goes on.we shall not, before you give a decision regarding the said disputes between us, cancel this muchilika executed by us, by one of us alleging among others that you are doing injustice, or that you are partial and that your arbitration is not necessary and that you should not give decision. we shall agree to your decision itself as the final decision. we shall not contend for any reason and in any manner either in courts or in any other places that your decision is not proper.....

Judgment:

Spencer, J.

1. The plaintiff, a minor represented by his natural father, sued to establish 'that he was the adopted son of Chintalapudi Sanyasayya. The defendant who is the minor aurasa son of the said Sanyasayya, represented by his mother, opposes the suit. There was a reference to arbitration without the intervention of the Court. The defendant's mother agreed to the dispute being referred to be settled by a single arbitrator and in the much like that was drawn up she consented to be bound by and act according to the decision the arbitrator might give either on his own information or upon other information known in the village or by examining, the witnesses of both parties should he think it necessary. The agreement to refer goes on.

We shall not, before you give a decision regarding the said disputes between us, cancel this muchilika executed by us, by one of us alleging among others that you are doing injustice, or that you are partial and that your arbitration is not necessary and that you should not give decision. We shall agree to your decision itself as the final decision. We shall not contend for any reason and in any manner either in Courts or in any other places that your decision is not proper and that it cannot bind us.

The arbitrator admits that he enquired of witnesses behind the back of the parties and that 'he collected information and obtained an admission from the defendant's mother without noting them, down in writing. The question is whether the minor defendant is bound by such a surrender by his guardian of his legal right that the witnesses should be examined in. the presence of the parties and whether such procedure makes the award' otherwise invalid' within the meaning of Section 15 of the second schedule, Civil Procedure Code.

If the parties agreed that there was no need for him to take any evidence and that the arbitrator should decide the disputes between them on his own knowledge, no misconduct could be implied if he decided accordingly.

3. That is a perfectly sound proposition provided that the parties are sui juris. But the question here is whether it was a reasonable and prudent act on the part of the guardian of a minor thus to commit the interests of her ward into the absolute power of a single person whom she permits to follow a procedure opposed to natural justice. It 'is improper on the part of an arbitrator to get information from one side in the absence of the other or to utilize information not accessible to others--vide Re an arbitration between Gregson and Armstrong (1894) 70 L.T., 106, Harvey v. Shelton (1841) 7 Beav. 49 E.R. 1141 and Dobson v. Groves (1844) 6 Q.B. 637 . E.R. 239. The arbitrator examined by the Court admits that he acted thus and it also appears from the statement of plaintiff's guardian that the arbitrator acted on information obtained' before the reference. I am of opinion that his. procedure vitiated the award given in the present case and that the defendant's guardian could not waive her son's right to object to irregular procedure--vide Swamirao v. The Collector of Dharwar I.L.R.(1893) 17 Bom. 299 which follows Rhodes v. Swithenbmk (1889) 22 Q.B.D. 577. I would go further and characterize her conduct as gross negligence on the part of a guardian; and it has been held by this Court in Lakshminarayana Tantri v. Ramachandra Tantri : (1918)34MLJ71 and Chandur Punnayyah v. Rangam Viranna : (1922)42MLJ429 that gross negligence on the part of a next friend or guardian entitles a minor to impeach an award or a judgment passed against him. The appeal is allowed and the suit is dismissed. No costs.

Venkatasubba Rao, J.

4. The appellant attacks the judgment pronounced by the Subordinate Judge giving effect to an award made in favour of the plaintiff. The facts of the case may be very briefly stated. One Sanyasayya died leaving the defendant, his natural son, and his widow Ammanna, the mother of the defendant. The plaintiff claimed that he was adopted by Sanyasayya and stated that the defendant was born subsequent to the adoption and that Ammanna denied the adoption and refused to maintain the plaintiff. The disputes were then referred to the arbitration of a gentleman by name Boddu Appanna Doragaru and the submission was executed by the natural father of the plaintiff acting on behalf of the latter, and by Ammanna acting on behalf of the defendant. The arbitrator was to decide whether the plaintiff was the adopted son of Sanyasayya and to what rights he was entitled. The arbitrator made an enquiry and passed an award declaring that the plaintiff was the adopted son of the deceased Sanyasayya and awarded to him a fifth share of the estate. The plaintiff then made an application under paragraph 20 of Schedule 2 of the Civil Procedure Code that the award be filed in Court and the application was numbered and registered as a suit and the Subordinate Judge ordered the award to be filed and pronounced judgment according to the award. The defendant contended that the award was not binding upon him for the reason inter alia that the arbitrator examined witnesses in the absence of the parties and instituted private enquiries and passed his judgment upon information so obtained. The Subordinate Judge refers to this contention in the following passage in his judgment:

The arbitrator does not pretend that he reduced the evidence of the witnesses he examined to writing nor did he examine them in the presence of the parties.

5. This conduct on the part of the arbitrator is justified by a reference to the terms of the submission. The part of the submission material for this purpose is as follows:

Therefore we have executed this Yeka Panchayat Muchilika agreeing to be bound by and act according to the decision you might give either on your own information or upon other information known in the village or by examining witnesses of us both parties should you think it necessary. We shall not, before you give a decision regarding the said disputes between us, cancel this muchilika executed by us alleging that you are doing injustice or that you are partial and that your arbitration is 'not necessary. We shall agree to your decision itself as the final decision.

6. The first question that arises is, apart from any covenants in the Submission, is an arbitrator under the general law entitled to act on information received in the absence of the parties or on his own knowledge of the facts in regard to the matters in issue between the parties?

7. The law is perfectly clear on the point that an award based on such information or knowledge is invalid. In. Harvey v. Shelton (1844) 7 Beav. 455; 49 E.R. 1141, an award was set aside on the ground that the arbitrator interviewed one party in the absence of the other. Lord Langdale, M.R., says:

In every case in winch matters are litigated, you must attend to the representation made on both sides and you must not, in the administration of justice in whatever form, whether in the regularly constituted courts or in arbitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct and the decisions of the Judge which means are not known to the other side.

8. The Master of the Rolls also observes:

There is no proof, nor in such a case do I apprehend there could be proof, that the result to which Mr. Wakefield came was in any way prejudicial to Mr. Harvey.

9. Still the award was set aside on the ground that:

it is an ordinary principle in the administration of justice that no party can be allowed to use any means whatsoever to influence the mind of the Judge which means are not known to and capable of being resisted by the other party.

11. It is also settled that if the parties agree that the arbitrator shall decide the dispute on his own knowledge or that there is no need for him to take any evidence, no misconduct can be imputed. See Lakchmi Narain v. Sheonath Pande I.L.R.(1920) All. 185. Lord Denman, C.J., observes in Dobson v. Groves (1844) 6 Q.B. 637 115 E.R. 239 that no information ought to be received by the arbitrator in the absence of the parties unless the arbitrator has an express power reserved for that purpose or the parties agree that he shall 'exercise it. If the parties to this reference were sui juris the arbitrator would have been justified in acting as he did and his award would not be liable to be set aside on the ground of misconduct. But on behalf of the defendant who is a minor his mother and natural guardian consented to the terms contained in the reference and it cannot be held that the act of the mother is beneficial to the defendant. Such covenants are sometimes found in submissions executed by parties who are sui juris. But when a guardian is acting on behalf of a minor I do not think it, can be said that in any case it will be in the interests of the minor for the guardian to consent to the arbitrator possessing such wide powers. However no special grounds have been shown to exist in this particular case which would justify the empowering of the arbitrator to depart from the usual rules of procedure indispensable to the impartial administration of justice.

12. There is one matter to which I must advert. It has been said that the arbitrator after making enquiries of other persons, interviewed the defendant's mother herself and that she admitted the plaintiff's adoption. In regard to this, it is necessary to point out that the arbitrator in his award does not refer to this incident and does not profess to base his judgment upon this admission. What the actual statement made by the mother, if any, was, there is no means of knowing because it has not been recorded. In what circumstance the admission was made we are not in a position to say. Whether the admission was, qualified or absolute does not appear. Whether she admitted the factum of adoption or the validity of the adoption we have no means to find out. It must be remembered that the so-called admission is not a statement by one of the parties to the suit but only a statement made by the guardian of one of the parties. Such a statement could not be conclusive against the defendant as an admission. In any event, it is settled law that if evidence is improperly admitted the courts will not consider the question whether such evidence had or had not an effect upon the arbitrator's mind, and in this case the arbitrator having made private enquiries and obtained information, his award is there by vitiated. In Dobson v. Groves (1844) 6 Q.B. 637; 115 .E.R. 239 Lord Denman, C.J., observes:

When once the case is brought within the general principle by a possibility that the arbitrator's mind may have been biassed, there is a sufficient objection.

13. In Walker v. Forbisher (1801) 6 Ves. J. 70; 31 E.R. 943, the arbitrator swore that though he heard certain persons in the absence of one of the parties, the information had no effect upon his award. Lord Chancellor Eldon said:

I believe him. He is a most respectable man. But I cannot from respect for any man do that which I cannot reconcile to general principles. A Judge must not take upon himself to say whether evidence improperly admitted had or had not an effect upon his mind. The award may have done perfect justice but upon general principles it cannot be supported.

14. I am constrained for these reasons to set aside the award and allow the appeal. Prom the judgment of the Subordinate Judge it is clear that the arbitrator acted honestly and no prejudice or desire to do wrong can be imputed to him. But nevertheless, the procedure adopted by him is illegal and his acts amount to legal misconduct and his award is therefore bad. I agree with the order proposed by my learned brother.